As a result of a number of recent high profile shootings that have occurred across the United States, the constitutional right of Americans to own guns has been a hot topic in the media. This article will discuss the federal and state of Ohio gun laws and the use of a Gun Trust when planning your estate.
The National Firearms Act (“NFA”) was originally passed by Congress in 1934 in response to increasing crimes involving firearms. This law imposed a tax on certain firearms. The firearms at issue were machine guns, silencers, and short barreled rifles and shotguns. This law required the possessor of one of these restricted firearms to register it with the Department of the Treasury, which is now the Department of Justice, and to pay a tax of $200.00. This law was intended to discourage the possession of these types of firearms.
In 1968, NFA faced constitutional challenges and Congress amended NFA. The amendment provided that information received from a NFA application could not be used against an individual in a criminal proceeding. The amendment also expanded the definitions of certain types of firearms and added destructive devices to the list of items requiring federal registration. In 1986, Congress amended the NFA again. This amendment is known as the Firearm Owners Protection Act. Congress adjusted the definition of silencer and also prohibited the transfer or possession of machine guns manufactured after May 19, 1986.
In the Ohio Revised Code the term “dangerous ordinance” includes automatic firearms, short barreled rifles and shotguns. It is unlawful to knowingly acquire, have, carry, or use any dangerous ordinance. However, the exceptions are any of these items which are registered under the National Firearms Act, authorized state and federal officers, agents and employees, members of the armed forces, and law enforcement officers when acting in the scope of their duties. In addition, licensed importers, manufacturers, and dealers are also excepted from this requirement. These latter individuals must take proper precautions to secure such a dangerous ordinance against theft, acquisition, or use by an unauthorized or incompetent person and must take precautions to ensure the safety of persons and property.
As a result of these federal and state regulations involving dangerous ordinances, gun owners sometimes establish specialized “gun trusts” to own these types of firearms. A gun trust is a specific type of living trust, which is designed for the administration of guns in compliance with local, state, and federal laws. This trust sets forth specifics concerning the use, possession and transfer of the guns. The trust provisions includes instructions to the trustee as to his or her duties and powers, and should be as flexible as possible while making sure that it complies with federal, state, and local gun laws.
Specifically, the trust must be a valid trust under state law. Therefore, the Settlor has to have capacity to create the trust, indicate an intention to create the trust, have a definite beneficiary, and provide for specific trustee duties. This trust provides a mechanism for informal or formal sharing of the gun during life without violating the possession or transfer laws. This trust simplifies and clarifies the process of buying, selling, or bequeathing the guns, and specifically, the NFA guns. This trust provides specific guidance to successor trustees and others who may not be familiar with guns. It provide specifics concerning who the successor trustees will be, and who the beneficiaries will be upon the death of the initial beneficiary. If the beneficiary is married, then specific provisions may be added to allow a spouse to be the beneficiary of the trust if that is the intent of the Settlor.
If you have specific desires concerning the possession and transfer of certain classified firearms under NFA, you should contact an estate planning attorney who can assist you with understanding the potential need for a gun trust in order to avoid unintended results on the transfer or possession of your firearms during your life and upon your death.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663
Phone: (330) 364-3472
Fax: (330) 602-3187